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If Scalia Had His Way

Constitutional originalism is all the rage these days. In Congress, the new Republican House majority opened the session with a reading of the Constitution and a requirement that every proposed bill cite the specific constitutional authority on which it relies.

And the Supreme Court begins its new session this week with renewed energy on the originalist wing. Justice Antonin Scalia, the court’s leading originalist, has agreed to address the House Tea Party caucus on the separation of powers. He has also delivered speeches recently outlining his original understanding of the Constitution in areas like sex equality and the death penalty.

How would America change if the Scalia originalist vision — embraced by many Tea Party members — were enacted by the Supreme Court? Justice Scalia believes that the Constitution should be interpreted in light of the original understanding of its 18th- and 19th-century framers and ratifiers. That, he has stressed in recent speeches, would change our constitutional universe dramatically.

But he is not proposing a return to segregation and powdered wigs. In a 1989 article called “Originalism: the Lesser Evil,” he called himself a “faint-hearted originalist,” adding that he could not imagine “upholding a statute that imposes the punishment of flogging,” which the constitutional framers approved.

No to flogging, but what next? What would the country look like in an originalist universe? Liberal bloggers often like to set off alarm bells, and in certain cases, the law would become more conservative. But consensus among originalists is rare on any issue, and conservative justices often disagree among themselves about what the founders intended. And in many cases, liberal justices and advocates can argue plausibly that the constitutional text and history point to progressive rather than conservative outcomes.

Conservatives embrace originalism for many reasons, not least because it is supposed to help judges separate their legal conclusions from their personal views. But in practice, the version of originalism embraced by conservative justices often points in a conservative direction.

For starters, Justice Scalia said a return to the founders’ vision means states could impose the death penalty on anyone — including juveniles or the mentally retarded, for example — and there would be no abortion rights or rights of assisted suicide for the terminally ill.

“We don’t have the answer to everything, but by God we have an answer to a lot of stuff,” Justice Scalia said in an interview on originalism in September at the University of California’s Hastings College of the Law.

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Credit
Paul Sahre

Justice Scalia also insisted that the equal-protection clause of the 14th Amendment wasn’t intended to apply to discrimination based on sex or sexual orientation, and that the Supreme Court has erred by regulating both. “Nobody ever thought” that the Constitution banned sex discrimination, he said.

Sometimes, originalists agree about the founders’ intentions but disagree about overturning deeply rooted precedents that may clash with those intentions. Since the 1960s, for example, the Supreme Court has banned school prayer.

Drawing on the work of liberal and conservative scholars, Justice Clarence Thomas has argued that those decisions are inconsistent with the intention of the framers of the First Amendment, who wanted to prevent the federal government from interfering with established state churches, rather than requiring a wall of strict separation between church and state.

Justice Scalia doesn’t dispute these historical conclusions, but he said that unlike Justice Thomas, he wasn’t ready to reverse the decisions applying the First Amendment’s restrictions on religion to the states. “I’m not going to rip all that up; it’s water under the dam,” he said in a 1997 speech. “In other words, I am an originalist. I am a textualist. I am not a nut.”

Today, the most heated controversy over originalism centers on health care reform. The justice most likely to strike down the new law is Justice Thomas, who has argued that the framers intended for Congress to have far narrower authority to regulate interstate commerce than the modern court has allowed.

His vision might call into question much of the post-New Deal regulatory state, and for pragmatic reasons, Justice Scalia and other conservatives have so far refused to embrace it. “Part of the problem is that we’ve already come so far from the original understanding that I don’t think we’re going to go back very far on this,” said Michael McConnell of Stanford Law School, a leading conservative constitutional historian.

In addition to disagreeing about the value of previous precedents, the conservative justices disagree among themselves about what the founders would have thought about technologies and institutions that didn’t exist when the Constitution was written.

In a November oral argument about a California law restricting minors from buying violent video games, Justices Scalia and Samuel A. Alito debated whether the ratifiers of the First Amendment would have thought that it protected portrayals of violence.

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Credit
Paul Sahre

“What Justice Scalia wants to know is what James Madison thought about video games,” and if “he enjoyed them,” Justice Alito said sarcastically. Justice Scalia shot back, “No, I want to know what James Madison thought about violence.” The dispute will be resolved in the opinion, to be issued later this year.

Even when there’s broad scholarly agreement about original understanding, the conservative justices sometimes ignore it.

In a decision last year holding that the states are bound by the Second Amendment’s right to bear arms, the five-member conservative majority — Justices Scalia, Thomas, Alito and Anthony M. Kennedy as well as Chief Justice John Roberts — ignored the consensus among liberal and conservative scholars that framers of the 14th Amendment intended to apply the Second Amendment to the states not through the “due process” clause but instead through the “privileges or immunities” clause, which the court has long overlooked.

Resurrecting this forgotten clause might lead to greater protection for a range of individual rights. “Recently, originalism has taken some serious hits on the court not because of its opponents,” said Professor McConnell, “but because of its proponents, who manifested a distinct lack of interest in following the original understanding when it became inconvenient.”

For this reason, many liberal scholars have concluded that originalism is more of a rhetorical argument than a consistent, principled approach to constitutional interpretation.

“If you took the originalists at their word,” said David Strauss, a liberal University of Chicago law professor, “you could punish people for criticizing the government, the federal government could discriminate against anyone it wanted to, and there’s a real argument that the interstate highway system is unconstitutional. The federal prison system and criminal law would be in serious question, and forget the Federal Reserve. It would be gone.”

In the end, however, many liberal scholars believe that if the court took seriously the text and history of the entire Constitution — including the 16th Amendment, authorizing the income tax, and the 19th Amendment, which gave women the right to vote — then originalism should just as often lead to liberal as conservative results.

On issues like campaign finance, health care, financial reform and gender discrimination, these scholars say, taking the 20th-century amendments as seriously as those passed in the 18th and 19th centuries would guarantee a constitutional originalism that upheld modern visions of liberty and equality.

“I hope Scalia and Thomas succeed in making their colleagues care more about text and history,” said Douglas Kendall, the president of the Constitutional Accountability Center, which argues that originalism can favor progressive causes. “But if they’re honest in reading and considering these sources, it won’t always yield the results the Tea Party wants.”

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.